Traditionally, the law relating to defamation in New South Wales, as in other States and Territories, has been developed under the common law (ie the courts have created the rules without legislation over time). Because of this, it differed between the States and Territories.

Defamation in New South Wales has also traditionally identified two separate types of defamation, known as slander (defaming a person orally) and libel (defaming a person in writing). These distinctions have effectively been abolished with New South Wales adopting uniform defamation laws in 2005, which commenced operating in 2006.

What is defamation in New South Wales?

Generally speaking, defamation refers to something said or written by one person which negatively affects the reputation of another person, and that thing said or written is not true or is unsubstantiated.

It can be, for example, in the form of a photograph or a newspaper article, it could be distributed over the internet, or it could simply be words used to defame a personal orally without a written record. Artworks have also been the cause of defamation claims being made.

Cases of defamation occurring in social media (for example, negative tweets on twitter and negative Facebook posts) are increasing every year; for example, in 2014 a high school teacher was awarded $105,000 for defamatory comments made about them by one of their former students, who claimed she had stolen his fathers’ teaching role when in reality his father had left his role for health reasons. So you should always be careful what you write or say about other people.

Bringing a claim for defamation in New South Wales

Individuals are allowed to bring claims for defamation by lodging a statement of claim that contains certain details, such as the wording of the defamatory material. The statement of claim does not include an accusation that the material was false or malicious; this comes out in the defences.

Certain kinds of companies cannot bring defamation proceedings. Generally speaking, the claim must be brought within one year of the defamation occurring.

You do not need to prove whether there was any damage to you as a result of the defamation. If something posted or written about you has more than one defamatory comment, you can bring just the one claim for all of those comments. Defamatory material about a person who has died cannot be subjected to a defamation claim.

While a defamation case is being dealt with, you can seek an interlocutory injunction stating that the material cannot be published until the case is settled, but these are generally harder to get in defamation cases because concerns about free speech become very important.

What needs to be proven?

For the claim to succeed, you will generally need to prove the following:

the defendant has made a communication to other people – this could be online, in person, or through some other medium like art;

the communication was related to you or identifies you – this test can be one of the hardest to satisfy, particularly in relation to communications like art which may be ‘veiled criticism’ or open to interpretation; and

the communication was defamatory, in the sense that it either negatively affects your reputation, lowers your estimation in the eyes of other people, or might cause you to be avoided or shunned by other people.

Defences

Defendants in a defamation case have a large number of defences available to them both under the common law and under the Defamation Act 2005. For example, the defendant could rely on one of the following:

The defence of justification – if the statements made are ‘substantially true’, they will not be defamatory.

The defence of absolute privilege – if the statements were made in a situation where they were ‘absolutely privileged’, they will not be defamatory; for example, communications made to the court during proceedings, and communications made to some government bodies like the Ombudsman.

The defence of honest opinion – communications which are just an opinion rather than a statement of fact, which are based on proper material, and are in the public interest, will not be defamatory.

the defence of ‘free speech’ – this is a common law defence and is only available in relation to communications made about the government or other political things.

How can court be avoided?

The Defamation Act 2005 provides a mechanism which allows publishers to make offers to make amends to the person who has allegedly been defamed.

Firstly, the person who claims they have been defamed may give the publisher a ‘concerns notice’ setting out their grievance. The publisher can then make the offer to make amends. If the aggrieved person does not accept the offer and the offer was reasonable, the offer itself can be a defence in defamation proceedings